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University of Alabama School of Law
Carodine, Montre D.

Evidence Outline Carodine Spring 2013
Evidence Introduction
Constitution>Rules>Legislative History (Advisory Committee Notes)>Common Law
First Questions of Evidence:
1.      What is evidence being offered to prove?
2.      How are you going to get it in?
o   Which rules are you looking at
Reasons for limiting evidence:
1.      Reaching the right decision
–          On the other hand excluding evidence can hurt in some cases
2.      Trials must end at some point
3.      Mistrust of jury
4.      Violates Constitution
5.      Society protects the privacy of some communication
6.      Since we don’t review jury, evidence presented must be chosen carefully
General Principles of Relevance
Probativeness and Materiality
Rule 401 – Test for Relevant Evidence
Evidence is relevant if it has
·         Any tendency to make
·         Fact of consequence
·         More or less probable
Notes on Rule 401
·         Low threshold of relevance (bare relevance standard); just because evidence is relevant does not mean it’s admissible
·         Material (bears on fact that is important to determination of action) + probative (tend to make existence of fact more or less probable)
o   Whether evidence is material depends on what issues are at stake in the proceeding which turns on the substantive law – look to substantive law for materiality
o   Relevance carries meaning only in context – requires relation between an item of evidence and a matter properly provable in the case
·         Fact to which evidence is directed need not be in dispute for evidence to be directed
o   If excluded, needs to be on basis of considerations such as waste of time or unfair prejudice rather than because it is not directed at a disputed fact
o   Much helpful background evidence would be excluded if only evidence that supports a disputed fact were admissible
·         “A brick is not a wall.” – Professor McCormick
·         Speculative evidence sometimes deemed irrelevant – doesn’t meet 401 test
·         Permissible evidence used to impeach witness always relevant
Rule 402 – General Admissibility of Relevant Evidence
Relevant evidence is admissible unless it is excluded by
·         Constitution
·         Federal statute
·         Evidence Rules
·         Other rules prescribed by SCOTUS (FRCivPro, FRCrimPro)
Irrelevant = Inadmissible
United States v. James, 9th Cir., 1999
·         Facts: Woman convicted of aiding and abetting manslaughter by giving daughter a gun, which she used to kill her mother’s boyfriend.  Part of testimony was to horrible acts boyfriend had committed, which went to her self-defense defense to show her state of mind at time she gave daughter gun – jury later asked judge if stories were true or were they “brag.” Trial judge refused to admit defendant’s evidence of boyfriend’s acts. 
·         Holding/Rule: 9th Cir says trial court viewed evidence too narrowly – evidence goes to her credibility in relating these incredible stories and should have been admitted.  Exclusion was prejudicial and probably affected verdict more than not.
·         Motions in Limiting: The court limits the evidence that will be admissible at trial
·         Self-defense requires that you have a reasonable fear (what you know) at the time of the incident, so the district court in this case didn’t think the court records was relevant
Conditional Relevance
Rule 104(b) – Relevance that Depends on a Fact
When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.  The court may admit the proposed evidence on the condition that the proof be introduced later.
Notes on Rule 104(b)
·         Standard of proof is sufficient evidence to support a finding by a reasonable jury by a preponderance of the evidence that the conditional fact exists – standard is generally easily met
o   Not whether evidence would support a finding, but whether or not judge thinks it would support a jury finding
o   Jury determines whether or not the fact exists
·         Slightly (not much) higher standard than 401’s bare relevance standard
·         Judge can let in conditional evidence subject to later-introduced proof
·         You need a good faith basis to come to the conclusion that you come to. You are only limited to your imagination
o   Ex. Must give a reason that you thin the guy’s brakes failed; cant just pull It out of the air
Cox v. State, Supr. Court of Indiana, 1998
·         Facts: Cox charged with murder – theory is murder was retaliation for friend who is in jail because of victim.  Cox said court erred in admitting testimony of his friend’s mother about the friend’s bond reduction and additional charges; its relevance depended on whether or not he was aware of the content of the testimony. 
·         Rule: Evidence containing conditional relevance can only be admissible if sufficient proof can be introduced to support the finding that a fact does exist
·         The judge is only required to determine whether a reasonable jury can make the requisite factual determination based on the evidence before it.  Here, evidence was sufficient to support a finding by a jury by a preponderance of the evidence that Cox knew about the friend’s bond reduction and charges.
Probativeness vs. Risk of Unfair Prejudice
Rule 403 – Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
The Court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Notes on Rule 403
·         Almost every piece of evidence must survive the 403 balancing test
o   Some specific instances where there is variation in 403 standard or none at all
·         The probative value of evidence that supports an uncontested “fact…of consequence” may be minimal, although the evidence meets the bare minimum standard of relevancy
·         It is within trial judge’s discretion to exclude relevant evidence under 403 (reviewed for abuse of discretion)
o   Abuse of discretion = definite and firm conviction that court below committed a clear error of judgment
Carodine Definition- Grossly Unsound (a bad decision)
·         Rule is designed to favor admissibility – when probative value and ground for exclusion are equally balanced, evidence is to be admitted
o   In balancing, trial judge may consider additional factors such as the centrality of the point to be proved, the need for the particular evidence, the availability of alt sources of proof, likely effect of limiting instructions on jury – stipulations do not have to be accepted by judge
o   Evidence may not be exclud

s impeachment, but the court had to weigh their probative value against their risk of wasting time, unfair prejudice, or misleading the jury.  The court allowed the defense to present testimony that Fuhrman used the epithet in 41 statements during the time period in question and to present two of the statements.  The court found that the other 39 were too inflammatory and their probative value was substantially outweighed by the danger of unfair prejudice.
Evidence of Flight
United States v Myers, 1978
·         Facts: Somebody committed a robbery in Florida and Pennsylvania. Cops thought it was Myers. Myer’s friend Coffie confessed to the crimes but Myers was still charged and they sentenced him to 10 years. Myers argued that the district court erred in their instruction of the jury on the use of flight to show a likelihood of guilt. He said that there was not sufficient evidence to support it
·         Issue: Whether it was reversible error to instruct the jury on the risk of flight without sufficient evidentiary support?
·         Rule: Four inferences have to be taken into account when determining whether flight evidence can be admitted:
1.     An inference from the D’s behavior to flight
2.     From flight to consciousness of guilt
3.     From consciousness of guilt to consciousness of guilt concerning the crime charged
4.     From consciousness of guilt concerning the crime charged to actual guilt of the crime charged
·         Because of the inherent unreliability of evidence of flight, and the danger of prejudice its use may entail, a flight instruction is improper unless the evidence is sufficient to furnish reasonable support for all four of the necessary inferences
·         Flight has to be something that someone does instinctively shortly after the crime
o   Time is a factor and makes flight problematic
Effect of Stipulations
United States v. Jackson, E.D.N.Y., 1975 (Don’t Forget, this issue comes up a lot)
·         Facts: Defendant arrested in Georgia after robbery in NY and had a fake ID and guns.  Prosecution wanted to offer flight evidence – inference is that he fled because of the NY robbery.  Flight evidence has some tendency to prove consciousness of guilt, but it’s not conclusive – defendant had been indicted for assault, as well, so he could have fled because of the assault. 
·         Holding: Judge says flight evidence would risk the jury learning of the arrest and/or of his assault conviction.  Judge held that the evidence related to defendant’s arrest in Georgia is inadmissible at trial if the defendant stipulates that he was in Georgia shortly after the robbery and used a false name.  Jury won’t see him as nat’l criminal, but still can make inference that he fled NY bc of robbery.